Note: Decisions of a three-justice panel are not to be
considered as precedent before any tribunal.

ENTRY ORDER

SUPREME COURT DOCKET NO. 2002-257

MARCH TERM, 2003

State of Vermont

v.

Kimberly Lafleur

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APPEALED FROM:

District Court
of Vermont, Unit No. 2, Chittenden Circuit

DOCKET NO. 2122-4-01 Cncr

Trial Judge: Michael S. Kupersmith and Helen Toor, Jury Draw

In the above-entitled cause, the Clerk will enter:

Defendant appeals from a jury verdict finding her guilty of
driving while intoxicated (DWI), third offense. She claims the trial court
committed plain error by failing to enter a mistrial after the prosecutor
informed the jury about defendant' s
two prior DWI convictions during jury selection. We reverse and remand for a new
trial.

In April 2001, the State charged defendant with DWI, third
offense after a traffic stop in Milton, Vermont. At the outset of jury selection
on December 10, 2001, the court informed the potential jurors that defendant was
charged with DWI, but that she was presumed innocent. Following the court'
s introductory remarks, the prosecutor addressed the jury pool. After his
greeting, the prosecutor stated that "
[t]his is a case where the State has charged the Defendant, Ms. Lafleur, with
DWI, third offense." The parties
proceeded to question members of the jury pool, and a jury was eventually
selected that day. Trial was scheduled for December 20, 2001.

At trial, the question of defendant'
s sobriety at the time of the April traffic stop was contested. Defendant
testified and presented an innocent explanation for her performance on the
sobriety tests the police officer asked her to execute. Defendant also offered
evidence impeaching the reliability of the Datamaster breath test results. After
hearing all of the evidence, the jury convicted defendant.

After the guilty verdict, the court informed the jury that
the case was not yet over. The court told the jury that it still had to
determine whether defendant had been convicted of the same crime twice before.
The court explained that normally juries are not informed of similar prior
convictions because " in deciding
whether or not an individual was under the influence on this particular
occasion, we don' t want you to know
that he or she has been found guilty of essentially the same offense on any
prior occasion." Immediately, one of
the jurors told the court that during jury selection,
" we all heard it said that there were
prior convictions." The trial judge
stated that he was unaware that the jury had been made aware of the prior
convictions already, " but in any
event, it doesn' t change the
situation now where the issue of these prior convictions is going to be
presented to you." Defense counsel
asked to approach the bench and the parties conferred with the judge, but the
record does not disclose what was said during the conference. The court
responded:

Well, apparently this came out at the time of voir dire
and, I mean, I was not involved in the voir dire and it might very well be
that one of you two said it or it might be that the judge read the entire
information and the judge said it. I don'
t know, but that was the time to say it. Now, what'
s in the record is in the record and I suppose it'
s possible that might give you a little basis for appeal on something a
little later on, but right now, we'
re going to go forward with this particular issue.

The court did not inquire further about the disclosure of
defendant' s DWI record or its impact
on the jury. Before the jury received evidence of defendant'
s prior convictions, defendant moved for a mistrial. The court denied the
motion. The jury eventually found that defendant had two previous convictions
for DWI. After the court denied defendant'
s post-trial motion for a new trial, defendant appealed her conviction to this
Court.

On appeal, defendant claims it was plain error for the court
to proceed to trial after the jury had been told about her prior convictions for
the same crime. It is only the extraordinary and rare case in which plain error
will be found. State v. Ross, 152 Vt. 462, 468 (1989). The error must be
obvious and must affect the defendant'
s substantial rights. Id. We will reverse where failure to recognize the
error will result in a miscarriage of justice or where the error is so serious
that it strikes the heart of defendant'
s constitutional rights. State v. Davignon, 152 Vt. 209, 222 (1989). This
is one of those extraordinary cases.

It is well-settled that evidence of a defendant'
s prior convictions for the same crime is generally inadmissible because of the
likelihood of jury prejudice. See Reporters Notes, V.R.E. 404(b); State v.
Cameron, 126 Vt. 244, 250 (1967). In State v. Cameron, we addressed
Vermont' s recidivist statute
concerning the offense of driving with a suspended license (DLS). In that case,
we concluded that the jury may not hear evidence of the defendant'
s prior DLS convictions before rendering a verdict on the principal offense. We
explained:

To project the issue of the accused'
s former conviction(s) into the trial for a subsequent offense, before
verdict, practically deprives the respondent of the legal presumption of
innocence, inevitably prejudices the jury against him, and takes from him
his constitutional right to be convicted only by the judgment of his peers
and due process of law.

126 Vt. at 250. For those same reasons, it is obvious error
for the jury to be made aware of a defendant'
s prior convictions for DWI before the jury renders a verdict on the principal
offense. See State v. Bushey, 142 Vt. 507, 510-11 (1983) (reversing DWI
conviction because prosecutor elicited testimony about defendant'
s two prior DWI convictions).

The error alone does not, however, cast doubt on a jury'
s guilty verdict or make questionable the fairness of the trial because curative
measures exist to ensure the defendant'
s right to a fair and impartial jury. Upon learning of the error, the trial
court may voir dire the jury to determine the existence and extent of prejudice
caused by the premature release of information about the defendant'
s prior conviction, and may issue an admonishment or other cautionary
instruction to the jury to disregard the information in its deliberations. See
State v. Onorato, 142 Vt. 99, 106-07 (1982) (court resolved question of
jury bias flowing from disclosure that proceeding was defendant'
s second trial by general inquiry to jury about prejudice).

In this case, the record demonstrates that at least two
jurors recalled the prosecutor' s
statement about defendant' s prior
convictions. Nevertheless, the court did nothing to assess the potential impact
the prosecutor' s statement had on the
jury at any time during the proceeding. Indeed, even after defendant moved for a
mistrial, the trial judge made no effort to determine exactly what occurred
during the jury selection process to satisfy himself that defendant had received
a fair trial on the principal offense by an unbiased jury.

Citing the limited nature of the prosecutor'
s remark, the State argues that reversal of defendant'
s conviction is not warranted here because the court instructed the jury that
its verdict must be based on the evidence in the record only, counsel'
s comments were not evidence, and defendant was presumed innocent of the
charges. The State also points to the evidence of guilt presented to the jury in
support of its argument. We conclude that the court'
s general instructions to the jury were not sufficient to assure us that
defendant' s prior convictions played
no role in the jury' s deliberation.
That is particularly so in this case where the parties hotly disputed the extent
of defendant' s sobriety on the night
in question. See Bushey, 142 Vt. at 511 (reversal required where record
shows sharply contested DWI prosecution and prosecutor elicited evidence of
defendant' s prior DWI convictions).
As we noted in State v. Onorato, absent some examination of the jury by
the trial court upon discovering the possibility of jury prejudice,
" the trial judge lacks a basis for
determining if any prejudice exists, and consequently this Court has no record
from which it can determine if the jury was fair and unbiased."
Onorato, 142 Vt. at 106. Accordingly, defendant'
s conviction must be reversed and the matter remanded for a new trial.